Laurie R., Matter of

• Decision Date: 14 June 1988
• Docket Number: No. 10119,10119
• Citation: 760 P.2d 1295,107 N.M. 529,1988 NMCA 55
• Parties: In the Matter of the Termination of Parental Rights of LAURIE R., Respondent, and with respect to the Child, Jean R. LAURIE, R., Respondent-Appellant, v. NEW MEXICO HUMAN SERVICES DEPARTMENT, Petitioner-Appellee.
• Court: Court of Appeals of New Mexico

Page 1295

760 P.2d 1295

107 N.M. 529

In the Matter of the Termination of Parental Rights of LAURIE R., Respondent, and with respect to the Child, Jean R LAURIE, R., Respondent-Appellant, v. NEW MEXICO HUMAN SERVICES DEPARTMENT, Petitioner-Appellee.

No. 10119.

Court of Appeals of New Mexico.

June 14, 1988.

[107 NM 530] Larry Van Eaton, Taos, for respondent-appellant.

Jennifer A. Salisbury, Gen. Counsel, Susan K. Rehr, Asst. Gen. Counsel, Human Services Dept., Santa Fe, for petitioner-appellee.

Colin Alcott, Taos, Guardian Ad Litem.

OPINION

DONNELLY, Chief Judge.

Respondent (mother) appeals from an order of the district court terminating her parental rights to her minor daughter. We discuss: (1) whether the trial court possessed personal and subject matter jurisdiction; (2) whether the trial court erred in denying the mother's motion for a continuance; (3) whether the trial court erred in admitting into evidence prior mental health commitment records of the mother; and (4) whether the trial court's findings are supported by proper standard of evidence. We affirm.

The child, Jean R., was born in September, 1977. The natural father, Clifton R., was a member of the Cheyenne-Arapahoe Tribe, and is now deceased. The child is an enrolled member of her father's tribe; the mother, however, is a non-Indian. Since the child was six months old, she has been moved between various foster homes and the homes of relatives. Although the child is now approximately eleven years old, she has resided with her mother for only approximately three years.

In July of 1983, the mother, while living in Montana, contacted her sister in New Mexico and requested that she assist her in caring for the child. With the mother's permission, the sister removed the child from Montana and brought her to Taos. After the child had resided briefly with her aunt, the Human Services Department (department), acting in part on information supplied by the aunt, instituted proceedings against the mother alleging that the child was neglected. Following a hearing, the child was found to be neglected and legal custody was transferred to the department. This determination was previously affirmed on appeal by this court. See In re Jane Doe, Ct.App.No. 8895 (Memorandum Opinion Filed January 9, 1986).

On June 13, 1985, the department filed a petition for termination of the mother's parental rights. During the pendency of this action, the department sought to amend its original petition by filing three separate amended petitions. On March 30, 1987, the mother filed a motion to dismiss, a motion for continuance and a response to the petition. Thereafter, the department filed a motion to consolidate the several amended petitions or, alternatively, for leave to file a third amended petition. The court granted the department's motion to file a third amended petition and denied the mother's motions to dismiss and for a continuance. During the proceedings below the child was represented by a guardian ad litem appointed by the court. Following a trial on the merits, the court adopted findings of fact and conclusions of law and entered a judgment terminating the mother's parental rights.

I. JURISDICTION

The mother claims that the trial court lacked both personal and subject matter jurisdiction to terminate her parental rights.

A. Personal Jurisdiction

The constitutional requirement relating to personal jurisdiction was articulated in International Shoe Co. v. State of Washington Office of Unemployment Compensation & Placement, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), wherein the Supreme Court stated that, for due process standards to be met, the defendant need have only "certain minimum contacts" with the forum state "such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " (Quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940).) Jurisdiction over the person embraces due process notions of contact with the state and sufficiency of notice of the action. In re Doe, 99 N.M. 517, 660 P.2d 607 (Ct.App.1983). Service of process by personal delivery of the papers within the state generally serves to indicate that defendant has an appropriate relationship to the state and has been given notice of the proceedings against him. Clark v. LeBlanc, 92 N.M. 672, 593 P.2d 1075 (1979).

The mother asserts that even though she was personally served in the state in the termination proceedings, requisite minimum contacts were absent in order to subject her to this state's jurisdiction. She argues that the only contacts she had with New Mexico were involuntary and necessitated by her efforts to regain custody of her child. Determination of whether minimum jurisdictional contacts exist turns on the degree to which the person over whom jurisdiction is sought has purposefully availed himself of the benefits, protections, and privileges of the laws of the forum state. See Fox v. Fox, 103 N.M. 155, 703 P.2d 932 (Ct.App.1985).

If the defendant is properly served with process while physically present in the state, ordinarily the court has in personam jurisdiction. See M.E. Occhialino, Walden's Civil Procedure in New Mexico 1-23 & -24 (2d ed. 1988). Respondent in effect contends that an exception should be recognized on these facts, because she was in New Mexico solely for the purpose of regaining custody of her child. We assume but need not decide that a due process inquiry is relevant. But cf. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950) ("Personal service of written notice within the jurisdiction is the classic form of notice always adequate in any type of proceeding").

The mother initially agreed that the child come to New Mexico to reside with her sister. The mother came to New Mexico twice to regain custody of the child. The record indicates that she was not able to care for the child, that her sister refused to relinquish physical custody each time, and that her sister ultimately asked the Department for assistance. After the Department took custody of the child, respondent consented to an order giving the Department custody, but later contested custody and the validity of her consent. After the child was adjudicated neglected, the mother remained in New Mexico and participated in a local treatment plan ordered by the court.

On these facts, New Mexico had sufficient contacts with the mother to justify the assertion of personal jurisdiction for purposes of terminating parental rights. Respondent has not demonstrated that the assertion of jurisdiction is unreasonable, and we are not persuaded that it is unfair. We conclude that if a due process inquiry is appropriate, due process was provided.

The mother has lived in this jurisdiction since 1984, has attended college here, and has been employed in New Mexico. Moreover, she was personally served with process in this state in the present proceeding. The record amply supports the trial court's finding that the court obtained personal jurisdiction over both the child and her mother. See United Nuclear Corp. v. General Atomic Co., 91 N.M. 41, 570 P.2d 305 (1977).

B. Subject Matter Jurisdiction

The mother also challenges the trial court's subject matter jurisdiction. She argues that the department failed to file a verified petition seeking termination of parental rights within the time limits proscribed by statute, thereby depriving the trial court of jurisdiction. The mother also claims that the district court erroneously denied her oral request that termination proceedings be transferred to a tribal court.

An action for termination of parental rights is initiated by filing an application for termination, signed and verified by the applicant. NMSA 1978, Sec. 32-1-55(B) (Repl.1986). In this case, a series of petitions and amended petitions were filed by the department. ¹

The mother argues that because the department's initial petitions were unverified, the action must be dismissed because this omission deprived the court of subject matter jurisdiction. See Dinwiddie v. Board of County Comm'rs, 103 N.M. 442, 708 P.2d 1043 (1985), cert. denied, 476 U.S. 1117, 106 S.Ct. 1974, 90 L.Ed.2d 658 (1986) (involving an unverified petition in an action challenging the validity of a bond election). The rule articulated in Dinwiddie, however, is not controlling here because in the present action there is no statutory mandatory time limit prescribed for the department to file its petition for termination of parental rights. ²

The Children's Code, NMSA 1978, Sections 32-1-1 to -55 (Repl.1986 & Supp.1987) and the Children's Court Rules, SCRA 1986, 10-101 to -311, do not expressly delineate whether the Children's Court Rules apply to proceedings for the termination of parental rights, or whether procedural amendments in such actions are controlled by the Rules of Civil Procedure for the District Courts, SCRA 1986, 1-001 to -102. The Children's Court Rules state that "[t]hese rules govern the procedure in the children's courts of New Mexico in all matters involving children alleged to be delinquent, in need of supervision, abused or neglected. * * *" Rule 10-101(A). The committee commentary following this provision states that these rules are specifically limited to such proceedings and that they are not intended to establish procedures for other proceedings under the Children's Code. Additionally, the statute governing termination proceedings refers expressly to the Rules of Civil Procedure. See Sec. 32-1-55(C) & (D). Thus, we conclude that the Rules of Civil Procedure for the District Courts apply to proceedings for the termination of parental rights.

Under SCRA 1986, 1-015(A), a party may amend his pleadings once as a matter of course at any time before a responsive pleading is served; otherwise, a party may amend his pleading only by leave of the court. Amendments to...